Guilty Crime: You’ve Always Heard, But Do You Really Know What It Is?
This column is for you, a law student, who no longer has the right to say that the guilty crime “is that unintentional”, but also suffers from the curious questions of the family lunch, having difficulty explaining to his aunt because not everything in the world is eventual deceit.
Misconduct is the result of voluntary action directed at a lawful purpose which, by not observing an objective duty of care, causes a damaging result. The guilty offenses are exceptional and, therefore, can only be applied by express legal provision – without this prediction, the guilty punishment is incabível (principle of the exceptionality).
The evolution of guilty crime must be seen alongside the way of theories of conduct in criminal law.
In causalism, first, fraud and guilt were highlighted in the stratum of guilt, because subjective elements. Considering the division of Liszt-Beling, in an objective and subjective area of crime, fraud and guilt would only be analyzed after the affirmation of the purely objective injustice. Guilt was, then, a purely psychological conception.
The overthrow of causalism came precisely because of its division into objective and subjective points, since the concept of causal conduct was insufficient to explain the omissive crimes and, with respect to guilt, causalism forgot that the guilty crime was derived from normative criteria.
It was with Welzel’s finality that the analytical concept of crime was restructured to the format closest to the present one, with fraud and guilt in the type (adequate place to devalue action and result) – although it is already spoken in analyzing guilt in other strata, such as antijuridicity.
In the Military Penal Code, in art. 33, although the law does not follow the finalist logic, it presents the elements of guilty crime, namely: i) voluntary human conduct; ii) involuntary result (seeking the achievement of the lawful result, but the illicit occurs); iii) non-observance of the objective duty of care.
With regard to the objective duty of care, for example, the CTB, in arts. 28, 29 and 30, presents the duties of care imposed on the driver and limits the risk allowed. The breach of this duty arises when the conduct practiced differs from the standard of conduct required by law or by social conventions.
Such a duty of care, for part of the doctrine, may be internal, when it is the duty to warn the other about the near or external danger, when duty refers to the omission of dangerous actions, requiring prudent action. But the same doctrine still discusses whether the duty must be objective – starting from the assumption of the average man – or subjective, analyzing from the peculiarities of the agent that practices the conduct.
In order to break the discussion, modern doctrine brought in intermediate conceptions, affirming that there are minimum standards of conduct (such as CTB), but the requirement of the duty of care will be greater, the greater the knowledge, the mastery of a technique, (ie a professional driver will have a higher demand for care than a young driver who has recently been authorized to drive vehicles, even though both of them commit misdemeanors if they hit a victim on the sidewalk).
Still, some people say that what should be taken into account is the social environment in which the author lives.
The result, in wrongful crimes, as well as in malicious crimes, need not be naturalistic, but juridical – from which it can be deduced that the guilty placement of the juridical asset in danger would already be sufficient to affirm the culpable offense, even if materialize the danger materially (see article 56 of Law 9607/98).
In addition, the involuntary result must come from the nonobservance of the objective duty of care, and there must be a causal link between the two.
The guilty crime, finally, requires that the agent has been able to objectively predict the occurrence of the damaging result, from the notion of mastery of a technique. The observer should stand in the position of the agent, but must have in view the circumstances of the concrete case knowable by an intelligent person.
In short, guilty crime is a form of human conduct characterized by the realization of the type of a crime, by a dangerous action and contrary to the duty of care, whose guilt is based on not “avoiding” the avoidable result. The fault here would be a voluntary action, with the mastery of a technique, whose author does not affirm the commitment to the violation of the legal good, constituting itself in a purely normative element.